adjudicating mystery spills, a natural resource damage claims case ...

claim adjudication issues with claimants to better understand
assumptions, rationale and conclusions in NRD claims. This is
especially true in NRD claims based on mystery spills since critical
data/information are often not known. This was the case in the
Fort Lauderdale Mystery Spill NRD claim. For example, NPFC
discovered a number of apparent inconsistencies in model input
information (e.g., reported PAH content and LC50 input information
were inconsistently or erroneously reported in supporting
claim documentation; variances in these model data inputs would
have a significant effect on quantified injuries to marine fish and
invertebrates). Discussions with the claimant revealed that the
appropriate model input data were used and discrepancies
identified during claim review were simply claimants’ errors in
reporting data inputs. Moreover, open discussions between
claimants and NPFC regarding unique claim issues facilitate a
more thorough understanding of the incident (and claim) and
increase the collective abilities to accurately compensate for injured
natural resources. Such discussions may be had before claim
submission to ensure that claims are appropriately constructed
during claim development and after submission to address underlying
claim issues as they arise.
Claim Adjudication: As a final phase of claim adjudication,
NPFC makes a determination regarding the claim payment. This
determination is based on the claim’s demonstration of compliance
with OPA and other applicable state and federal statutes and regulations.
In the case of the Fort Lauderdale Mystery Spill, NPFC determined
that claimants had met all major requirements and
criteria for a successful assessment and restoration claim and the
claim was paid in the full amount requested by NOAA and the
State of Florida: $2,213,207 ($632,296 to reimburse the claimants
for past assessment costs and $1,580,911) to fund the implementation
of the restoration plan as described in Table 1 (NPFC, 2003).
CONCLUSIONS
Mystery spills present unique challenges when developing a claim
for natural resource damages since basic spill information that
may have a material affect on the level of natural resource injuries,
such as spill scenario and source oil composition, is often not
known. That notwithstanding, natural resource trustees are mandated
to assess the nature, degree and extent of injuries and
develop a restoration plan that compensates for these injuries from
such incidents. The US Coast Guard’s NPFC Natural Resource
Damage Claims Division adjudicates and pays claims for NRD
from oil spills, including mystery spills, through the consistent use
of statutory and regulatory claim requirements. Using the August
2000 Fort Lauderdale Mystery Spill as a case study, it is observed
that, though critical information about a mystery spill may be unavailable,
forensic tools such as oil spill fate and effects models,
comparative oil analyses and an understanding of local shipping
patterns, among others, can provide useful information for trustees
to fill critical knowledge gaps within a mystery spill natural resource
damage claim.
The claimants provision of clear and defensible rationales for
injury assessment studies, important assumptions and data interpretations
serve to clarify NRD claims for NPFC (and the public)
and facilitate a more straightforward and, likely, successful NRD
claim. In the case of FLMS, such rationales and supporting technical
documentation generally provided sufficient evidence for
claims of aquatic resource injuries where scant “hard evidence”
(i.e., observations of fish, invertebrate and turtle kills) was evident.
However, where supporting rationale was considered inconclusive
by NPFC, such as claimants’ rationale for using a 3.3% total PAH
concentration in modeling toxicity of spilled IFO, a highly variable
petroleum product, based on data from only one other spill
incident, NPFC conducted additional evaluation to determine that
this important modeling input variable was reasonable and
NATURAL RESOURCE DAMAGE ASSESSMENT 5
supportable. Accordingly, claimants are well served to provide
strong rationale and supporting evidence, where feasible, to support
NRD claims. Finally, communications between claimants and
NPFC before claim submission regarding difficult or confusing
claim issues will help to ensure a more successful and timely claim
adjudication, once submitted. NPFC welcomes such line of
questions from claimants to facilitate more comprehensive and
successful NRD claims.
BIOGRAPHIES
Ms. Carolyn Boltin is the Chief of the Natural Resource Damage
Claims Division of the U.S. Coast Guard National Pollution Funds
Center in Arlington, VA. She is an economist with a Bachelor’s
degree in marine science from the University of South Carolina
and a master’s degree in natural resource economics from Clemson
University.
Mr. Timothy J. Reilly is a Principal at Lighthouse Technical
Consultants, Incorporated in Rockport, MA. He is an environmental
Scientist specializing in natural resource damage assessments
with a bachelor’s degree in marine biology from the University of
Massachusetts and a master’s degree in environmental health from
the University of Minnesota.
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Marine Environments, Technical Documentation, Version 2.4.
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D.C. Available from the National Technical Information Service,
Washington, D.C. (NTIS PB96-501788).
Conner, W. and P. Wieczynski. 2003. Presentation of Claim to
the Oil Spill Liability Trust Fund for Mystery Oil Spill in South
Florida. Letter from NOAA and FDEP to Carolyn Boltin, NPFC.
8pp.
French McCay, D., Galagan, C. and Whittier, N. 2001. Florida
Mystery Spill of August 2000: Modeling of Physical Fates and
Biological Injuries. Prepared for NOAA Damage Assessment
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South Florida Sun-Sentinel. August 11, 2000b. Dania Beach oil
cleanups to continue. Administrative Record Document 1.3.15.
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Damage Claim Determination Letter. Claim Number M00098-
OC1. Sent to NOAA and FDEP. Arlington, VA. 24 pp.
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